C.S.H.B. 1538 78(R) BILL ANALYSIS
C.S.H.B. 1538
By: Chisum
Public Health
Committee Report (Substituted)
BACKGROUND AND PURPOSE
The Texas Funeral Service Commission (TFSC) regulates the funeral industry
to protect the public from deceptive funeral practices. To accomplish its
mission, TFSC: licenses about 5,000 funeral directors and embalmers, and
ensures compliance with continuing education requirements; inspects and
licenses 1,280 funeral homes and commercial embalming establishments;
registers approximately 200 cemeteries and crematories; and investigates
and resolves complaints regarding the industry from consumers or initiated
by the agency.
In fiscal year 2002, TFSC, employing 12 people in Austin, operated on a $1
million budget and collected $1.2 million in revenue from industry fees.
RULEMAKING AUTHORITY
It is the committee's opinion that rulemaking authority is expressly
granted to the Texas Funeral Service Commission in SECTION 7 (Section
651.152, Occupations Code), SECTION 37 (Section711.004(f), Health and
Safety Code), and SECTION 39 (Section 711.012, Health and Safety Code) of
this bill.
It is the committee's opinion that rulemaking authority is expressly
granted to the Finance Commission of Texas in SECTION 39 (Section 711.012,
Health and Safety Code) of this bill.
It is the committee's opinion that rulemaking authority in Chapter 711,
Health and Safety Code is transferred from the Texas Department of Health
to the Texas Funeral Service Commission in Section 45 of this bill.
ANALYSIS
The Bill continues Texas Funeral Service Commission until 2015.
The Bill does not affect the authority of the Texas Department of
Banking's to enforce Chapter 154, Finance Code or to regulate perpetual
care cemeteries. Perpetual care cemetery is defined. TFSC may not charge
a fee to a perpetual care cemetery, including a fee for issuing or
renewing a license. To renew a license for a perpetual care cemetery, the
cemetery must submit a renewal on a form prescribed by the TFSC. The
license is renewed on receipt of the form.
The Bill specifies that TFSC shall regulate cemetery and crematory
services and may not regulate cemetery or crematory services that occur
after burial or inurnment unless the services relate to the care and
treatment of the remains in an urn, casket, or outer closure.
The Bill establishes requirements for, and gives TFSC regulatory and
enforcement authority over, the practices of cemeteries and crematories
including the establishment of such facilities, inspections, license
requirements, setting licensure related fees, and licensure maintaince and
renewal requirements. The Bill states that an operator of a cemetery
shall sign a purchase agreement for a cemetery and a licensed crematory
operator shall sign a purchase agreement for a crematory. The Bill makes
conforming changes to existing sections of Chapter 651, Occupations Code
to include crematory operators, crematories and cemeteries where
appropriate.
The Bill states that a cremation can only be performed by a licensed
crematory operator. A person may not engage in the cremation business or
hold themselves out as a crematory operator unless the person is licensed.
TFSC shall examine each applicant for a crematory operator's license and
shall issue a license to a person who meets the licensing requirements.
TFSC shall establish proficiency, professionalism, ethics, and
qualifications for crematory operators. The Bill establishes application
requirements, eligibility requirements, license requirements, and
examination requirements and procedures for a crematory operator's
license. The Bill allows TFSC to set licensure related fees for crematory
operators.
The Bill establishes inspection requirements and guidelines for certain
cemeteries. The inspection requirements do not apply to perpetual care
cemeteries.
An applicant for a funeral director's license does not have to have
graduated from an accredited school or college of mortuary science if the
applicant has graduated from a funeral director program approved by the
TFSC. The TFSC may not approve such a program unless it is at least six
months long.
The Bill establishes additional, and alters existing, requirements for a
provisional license to practice funeral directing applicant. The TFSC
shall approve or deny a provisional license holder's application for a
license not later that second anniversary of the date on which the license
is issued. The two-year period may be extended is the results of an
examination have not been received.
The Bill allows certain case completions to serve as credit for both
mortuary school or college and the provisional license holder program. A
provisional license holder must list any such credit earned in the
appropriate required report. The Bill establishes specific work related
requirements for a provisional license holder.
The Bill deletes the requirement that the presiding officer and assistant
presiding officer of the TFSC Board be public members.
The Bill requires TFSC to establish ethics standards for individuals
licensed under this chapter. The Bill prohibits all persons that are
regulated by TFSC from making fraudulent statements or any other type of
false or misleading statements to the public concerning enumerated areas.
The Bill adds to the list of unethical conduct regarding custody of a
human body any violation of any state law governing the transportation,
storage, refrigeration, inurnment, interment, or disinterment of a dead
human body. The Bills classifies forgery of a physician's signature on a
death certificate as a false statement.
The bill requires the presiding officer of the commission to appoint a
three-member disciplinary panel to determine whether a funeral director's
or embalmer's license should be temporarily suspended or restricted.
Procedures and guidelines for suspension and restriction are enumerated.
The Bill requires TFSC to develop guidelines for the early involvement of
consumer and industry stakeholders in its rulemaking process and to
identify a method to determine who will be most affected by a proposed
rule. The TFSC should identify persons affected by a proposed rule and
ensure input from those persons before a rule is published in the Texas
Register. The Bill requires TFSC to develop and implement a policy
regarding effective use of technology in its delivery of services and
provision of information to the public and for TFSC to develop a policy
that encourages the use of negotiated rulemaking and alternative dispute
resolution.
The Bill provides immunity, civil and administrative, for voluntary
disclosure of a violation of Subchapter M, Chapter 651, Occupations Code.
The bill delineates what is and isn't a voluntary disclosure, specifies
when immunity does not apply, provides for civil or administrative
penalties to be imposed under specified conditions, provides mitigation
factors for penalties, establishes that in civil or administrative
enforcement actions the person claiming immunity has the burden of
establishing a prima facie case, specifies notice requirements, sets
findings that would not qualify a person for immunity and requires that a
violation that has been voluntarily disclosed and to which immunity
applies must be identified in a compliance history report as being
voluntarily disclosed.
TFSC shall adopt rules, establish procedures and prescribe forms necessary
to administer and enforce Chapters 714 and 715, Health and Safety Code.
The permissive authority given to TDH in Section 711.004(f), Health and
Safety Code, dealing with removal of remains, is transferred to the TFSC.
The TFSC has been added to the list of entities that may bring a
proceeding under Section 711.007, Health and Safety Code. The TFSC has
been added to the list of necessary parties that a nonprofit corporation
must serve under Section 715.006, Health and Safety Code.
The Bill allows the Finance Commission of Texas to use specific remedies
to enforce a specific section relating to perpetual care cemeteries. The
Commissioner must follow certain procedures, make certain findings, and
consider certain factors to pursue enforcement and access penalties. The
Commissioner may bring a civil action and issue an order to cease and
desist under certain conditions.
The bill places a 10 acre limit on family, fraternal, community cemeteries
that are exempt from Chapter 712, Health and Safety Code which pertains to
perpetual care cemeteries. In addition, public cemeteries owned by the
state, a county, or a municipality are added to the list.
The Bill repeals Sections 651.1575, 651.302(c), 651.455(b), and
651.506(j), Occupations Code.
The Bill repeals Subchapter N, Chapter 651, Occupations Code on March 1,
2004.
On September 1, 2003, all functions and activities related to Chapter 711,
Health and Safety Code, performed by TDH immediately before that date are
transferred to the TFSC. Housekeeping matters necessary for this transfer
are enumerated.
A cemetery or crematory establishment is not required to hold a license
under Chapter 651, Occupations Code, as amended by this Act, until March
1, 2004.
A crematory operator is not required to hold a license under Chapter 651,
Occupations Code, as amended by this Act, until September 1, 2004.
EFFECTIVE DATE
September 1, 2003
COMPARISON OF ORIGINAL TO SUBSTITUTE
CSHB 1538 defines "perpetual care cemetery." The substitute amends the
language to give authority over perpetual care cemeteries to the Dept. of
Banking. The substitute allows the governor to appoint a presiding
officer who is not a public member and allows the board to elect an
assistant presiding officer who is not a public member. Rulemaking in the
substitute has been clarified. The substitute codifies the current 6
month funeral director licensing program that was implemented in the 80's.
CSHB 1538 amends the time limit between the issuance of a provisional
license and the issuance of funeral directing license to conform with the
change allowing a person to begin training at a licensed establishment
prior to or concurrently with the required school. The substitute also
amends the current law to permit a person to begin their training under a
licensed funeral director or embalmer prior to or concurrently with going
to school and to receive a provisional license during this time period.
CSHB 1538 amends the provisional license program to include the number of
hours a week and month a provisional licensee must work under a licensed
funeral director or embalmer. It also provides for the dual credit for
qualifying embalming cases performed at a mortuary school. The substitute
adds language to prohibit the TFSC from charging perpetual care cemeteries
a licensing fee as they are already licensed and registered with the DOB.
The substitute adds new language providing amnesty from penalty for
violations that are corrected and self reported to the Commission.
Rulemaking authority is added in the substitute to the Health and Safety
Code delineating the authority of the DOB and the TFSC over cemeteries.